After 21 years as a private practitioner/litigator and eight runs for public office (five of which were for judicial office), I was finally elected to the Supreme Court of the State of New York on my ninth try in 1998. For the next nearly ten years, I had the privilege of serving as a trial justice in the Matrimonial Part and mostly in the Commercial Division. The last 13 years of my tenure as a judge were spent as an Associate Justice of the Appellate Division for the Second Judicial Department; the busiest appellate court in New York, the United States and, perhaps even, the world.
It was in the Appellate Division that I was exposed to, and handled, every variety of case – civil, administrative, and criminal. I learned to be collaborative with colleagues who were intellectually gifted and agile, as well as hard-working. Most significantly, I learned how to fairly apply the law while being faithful to precedent.
After 13 years in the Appellate Division and five progressively stronger eyeglass prescriptions, I decided that it was time to slow down just a bit and spend more time with my children, grandchildren and, especially, my lovely and loving wife who tolerated my weekly preparation of 20-plus cases, disciplinary matters, orders to show cause, slips, decisions, and opinions. She lovingly played the role of an “appellate widow” for long enough; too long if you ask her.
Thus, on January 5, 2022, the Court's first consultation of the year and my last as a member of the Court, I said my good-byes to colleagues – now my friends – and the amazing staff that enables each and every Justice of the Court to function maximally. I walked out the door of 45 Monroe Place, knowing that my 23-year judicial career, which was longer than my time spent as a practicing attorney, and representing one-third of my entire lifespan, had come to end.
On to the next chapter…
During my tenure on the trial bench, I always looked for ways to settle cases assigned to me. It seemed the right thing to do. That is, give the parties the opportunity to chart their own course rather than having a stranger, albeit well-meaning, to decide their fate. Thus, I devoted much time and effort to understanding the relative positions of the parties and what I would be hearing if the matter went to trial. With that philosophy and willingness to pursue settlement, I disposed of approximately 2,000 cases. Only about 4 or 5 cases each year needed to be tried to verdict.
In the Appellate Division (pre-pandemic), attorneys were permitted to schedule conferences with local Associate Justices who would entertain their applications for stays pending appeal rather than having to go to Brooklyn. Since appellate work is very cloistered and isolating (except on days when cases are heard), I relished the opportunity to meet with counsel, schmooze a bit and discuss their cases. Invariably, I would ask, “Why can't you settle this?” Although my question was generally met by a shrug of the shoulders, I was able to engage in a form of settlement negotiation. In some cases, settlements or partial settlements were achieved.
My point really is that no matter what stage of litigation the matter is in, any case can be settled! It just takes time, patience, a sense of humor, and commitment to see it through.
Now that I have retired from the bench, I have resumed doing what I had been doing throughout my judicial career – resolving (mediating) cases and helping people get past their differences. In so doing, I try to find a middle ground so that all parties can realize a sense of validation, vindication, and finality. The elusive goal of finality is one with which all can live; not necessarily the one they imagined when the dispute first arose nor one which makes them fully happy.
My Dad, after a career in plastics and then as a candy store owner, became a high school business teacher. He taught students how to succeed in retailing and marketing. One of the books on his reading list was entitled The Sale Begins When the Customer Says NO. I read it several times. It made an impression on me. With the principle of that book in mind, I put a scrolling message on my computer in Chambers which read, “$ettle Now or Call Your First Witness”. That was my response when my “customer” said “NO” or, more usually, “This case will never settle!”
That was the signal that it was time to mediate. Most cases settled as a result with my help. Those that didn't settle, were tried. Either way, the matters before me had closure which is, ultimately, the desire of every party.
I also realized that not every case is ready to be settled at a particular time. Some need to “ripen on the vine.” Yet, mediation can still calm things down and enable a mindset which will ultimately lead to resolution.
Now that I no longer have the power, authority, or the trappings of being a judge, I remain steadfast in that alternative dispute resolution is, in most civil cases, a reasonable and cost-effective way to resolve a dispute. With the terrible backlog of cases ready to be tried due to the pandemic, I can think of no better way to promptly and effectively resolve a civil matter than to have the case mediated while you wait. The worst that can happen is that you don't settle and call your first witness when your turn for trial finally arrives…many, many months from now.
Reprinted with permission from the April 21, 2022 issue of The New York Law Journal © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.